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blast, and, when the charge was high again, the puncher on his order turned the mouth of the converter down again, and shut off the air. Bateman stepped directly in front of the mouth of the converter, examined the molten metal within, found it perfectly quiet, motioned his helper to turn the mouth still further down, and the explosion at once occurred, threw the hot metal over and burned him. He testified that the explosion was unusual, and that he knew from his experience that the cause of it was wet moisture within the lining of the converter with which the hot metal had come in contact. Bateman's occupation was one in which there was great and manifest danger of personal injury from the escape of the molten metal from the mouths of the converters. Soon after the metal was introduced into a converter, it cracked or ate into the clay lining, and caused great chunks of it to fall into the hot mass and to splash it out through the mouth. When a converter was charged and the puncher was ready to turn the mouth of it up, it was necessary to put the air on in order to keep the hot metal from filling the twyer holes so that there would be no blast through the mass, but, when the mouth was turned up as the metal flowed over the holes, the blast blew it out through the mouth of the converter, often far across the building. The same result followed the turning of the mouth down for the air cannot be taken off until the metal has receded from the holes.
When a lining of a converter is green and the hot metal gets in contact with the moisture, there may be an explosion from that cause which will throw the metal out, but when the mouth of the charged converter is turned down and the air is shut off, and the metal is not moved, there is no danger in skimming it if there is no moisture in the lining with which the metal may come in contact. The plaintiff testified regarding this molten mass in the converter as follows:
“I have seen it splash out and boil out, and I have seen it blow out. Q. Every time you were thiere you would see there would be some metal blowing out, wouldn't you? A. Yes, sir.
"Q. You never saw a converter while you were on duty a single time that you were there that some of the metal did not blow out of the mouth? A. No, sir.
"Q. It would blow from various causes, would it not? A. It would blow out from a hundred causes.
"Q. You knew it would blow out when the converters were green? A. Yes; when the air is on and off. "Q. You knew it would blow out when no air in the converter too? A. Yes, sir. *Q. You knew moisture would cause the metal to blow out? A. Yes, sir. "Q. You knew they had been using asbes? A. Yes, sir. "Q. You knew there had been explosions? A. Yes, sir. "Q. And that, if a man stood right in front there and an explosion occurred, he would get hurt? A. I know if he stood there, and an explosion occurred, he would get hurt. "Q. You knew that since they were using ashes there that there had been explosions, and you went and told him (the foreman) about it? A. Yes; about this. "Q. The converters were occasionally green, were they, because they blew out, as you say, hundreds of times? A. Yes, sir. "Q. And you knew they were green at times? A. Yes, sir. "Q. That is, you could tell when the explosion occurred that they were green? A. When they were reported green and brought there green.
"Q. Sometimes they would be green when you would not know it? A. No. sir.
"Q. Would there be when you would know it? A. There might have been when I didn't know it.
"Q. And then it would be possible that they would be green without being reported to you? A. Yes, sir; possibly being green without being reported to me.
"Q. Sometimes it happens, does it not, that the clay will look apparently dry, and still be green underneath? A. I suppose it does ; yes.
"Q. You knew then from your long experience there that converters were being used that were green? A. Yes, sir.
"Q. And you knew what the consequence was? A. Yes, sir.
“Q. And you had no reason to believe that any different rule had been fol. lowed with respect to the lining of this than had been followed in the lining of others? A. No, sir.
"Q. In fact, you knew it was lined in the same way? A. As near as I knew anything about it.
"Q. The same men? A. Yes, sir. "Q. Blazzard and Newhold? A. Yes, sir. "Q. Working right there with you within a few feet of you? A. Yes, sir.
“Q. And so far as you could observe they had lined this just as they had lined all the others? A. Yes, sir.
"Q. And this had been set there just as all the others had been set out? A. Yes, sir.
"Q. At any rate, by reason of your long experience in connection with converters and taking charge of them and using them, you knew that explosions were frequently caused there by reason of the use of green converters? A. Yes, sir.
"Q. And, of course, the green converters where you had seen the explosions, numerous explosions, which enabled you to testify as to the cause of the explosion, were those which you and others of your associates there were using right along from day to day and month to month and year to year, weren't you? A. Yes, sir.
"Q. And yet you continued to work there knowing the fact that explosions would occur? A. Yes, sir.
"Q. And knowing from your long experience there what causes the explo sions? A. Yes, sir.
"Q. Knowing that when these explosions—that these explosions might come at any time? A. Yes, sir.
"Q. Knowing that they came from moisture in the converters ? A. Yes, sir.
“Q. Knowing that there was apt to be moisture in the converters at any time—that is, in any converter–from your long experience there? A. No, sir.
"Q. You said half a dozen times—pardon me for recurring to it—that there would be moisture in the converters ? A. Yes, sir; not in any converter.
"Q. You made the statement before, in the converters which you were using there? A. Yes, sir.
"Q. This No. 4 converter was one that was in constant use there, was it not? A. Yes, sir.
“Q. The same as the rest of them? A. Yes, sir.
"Q. And I say now, knowing the fact that there was sometimes moisture in the converters, and that it would produce explosions, you continued to work there? A. Yes, sir.
"Q. And you knew that explosions might occur at any time, didn't you? A. Yes, sir.
"Q. And you knew that if you stood right in front of the mouth of that converter, under those circumstances, you would be burned? A. Yes, sir.
"Q. And you didn't quit? A. No, sir."
If in the state of the facts and the testimony which has now been set forth the defendant was guilty of any negligence in this case, it consisted in the use of the gratings with the coal to dry the converters. But the plaintiff knew that the defendant had been using these gratings for this purpose for at least three months. He had been using and
subjecting to the actual test of trial converters dried with this fuel. It is obvious that the utmost care in drying and in inspection would be less certain to determine whether or not this fuel was drying the converters properly than the actual subjection of them to the molten metal which their linings were made to resist. It might be and probably was difficult, if not impossible, to ascertain in every case by reasonable care in drying and inspecting whether or not a converter was dried sufficiently. But the charging and the use of a converter determined that issue unerringly in every case. For three months the plaintiff had been subjecting converters dried with this fuel to this unerring test, and, if the fuel failed to dry them properly, he knew that fact better than the defendant or any of its witnesses. He also knew that, if moisture remained in the lining of a converter so that the molten metal came in contact with it, there might be an explosion. He knew that there had been explosions in the converters while the mixed fuel was used to dry them, and he knew that, if an explosion occurred when he stood in the front of the mouth of a charged converter, he would be injured. His attention had been called especially to this fuel and its effect two weeks before, for he testifies that he then told the foreman that the boys were afraid that the ashes did not thoroughly dry the converters. The foreman assured him that they did. He made no complaint, but continued in his employment.
While it is the duty of the master to exercise ordinary care to provide a reasonably safe place for the servant to work, and reasonably safe appliances for him to use, and while, unless he knows, or the fact is obvious, that this duty has not been discharged by the master, he may assume that it has been, and may recover for any injury resulting from the master's failure to discharge it, yet he assumes all the ordinary risks and dangers of the employment upon which he enters and in which he continues, including those resulting from the negligence of his master which are known to and appreciated by him, and those which would have been known to and have been appreciated by a person of ordinary prudence and care in his situation. Nor can a servant be heard to say that he did not appreciate or realize the danger when the defect or negligence was obvious and the dangers would have been apparent to an ordinarily prudent person of his intelligence in his situation. St. Louis Cordage Co. v. Miller, 126 Fed. 495, 501, 509, 511, 61 C. C. A. 477,483, 491, 493, 63 L. R. A. 551; Glenmont Lumber Co. v. Roy, 126 Fed. 524, 528, 61 C. C. A. 506, 510; Lamson v. American Axe & Tool Co., 177 Mass, 144, 145, 58 N. E. 585, 83 Am. St. Rep. 267; Sullivan v. Simplex Electrical Co., 178 Mass. 35, 39, 59 N. E. 645; Chicago, Milwaukee & St. P. Ry. Co. v. Benton, 132 Fed. 460, 462, 65 C. C. A. 660, 662; Choctaw, Oklahoma & Gulf R. R. Co. v. McDade, 191 U. S. 64, 67, 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Chicago Great Western Ry. Co. v. Crotty, 141 Fed. 913, 915, 73 C. C. A. 147, 149, 4 L. R. A. (N. S.) 832; Burke v. Union Coal & Coke Co., 157 Fed. 178, 180, 181, 84 C. C. A. 626, 628, 629.
If the defendant was guilty of causal negligence by the use of the mixed fuel, it was only because explosion and injury were the natural and probable consequences thereof, and might reasonably have been anticipated therefrom. If it was the duty of the defendant to use
coal alone and to avoid the use of gratings in drying the converters, the plaintiff knew that the company had failed to discharge that duty. And, if the defendant might have reasonably anticipated and could have known and appreciated the risk and danger of the use of this fuel and of the explosion and injury therefrom, much more must the plaintiff have known and appreciated them; for, in view of his knowledge of the use of the fuel, of the danger from the moisture in the linings of the converters, and of his continual test of linings dried by this fuel for three months by their actual exposure to the molten metal, these risks and dangers were far more obvious to him, or to a man of ordinary prudence in his situation than to one in the situation of the defendant, or of its other employés. The conclusion is that the evidence established the facts that the plaintiff knew of the use of the mixed fuel by the defendant to dry the converters and knew and appreciated, and therefore assumed, the risk and danger therefrom. For this reason, the court erred in its refusal to direct a verdict for the defendant. It is unnecessary to consider other specifications of alleged error at the trial, and the judgment below must be reversed and the case must be remanded for a new trial; and it is so ordered.
RINER, District Judge, dissents.
JEWELL V. STATE LIFE INS. CO. OF INDIANAPOLIS, IND. et al. (Circuit Court of Appeals, Fifth Circuit. February 8, 1910.)
No. 2,002. EQUITY ($ 369*)_TIME FOR TAKING PROOFS-PRACTICE IN FEDERAL COURTS.
Equity rule 69 gives a party to a suit in equity in a federal court, on whose pleading an issue of fact is joined, three months in which to take evidence in support of the allegations so put in issue; and unless such right is waived it is error for the court to hear the cause and enter in final decree before the expiration of that time.
[Ed. Note.-For other cases, see Equity, Cent. Dig. $ 779; Dec. Dig. $ 369.*] Appeal from the Circuit Court of the United States for the Northern District of Florida.
Bill of interpleader by the State Life Insurance Company of Indianapolis, Ind., against C. D. Frink, Mrs. C. D. Frink, and Jessie M. Jewell. Decree awarding the fund paid into court by complainant to Mrs. C. D. Frink, and defendant Jessie M. Jewell appeals. Reversed.
William W. Flournoy, for appellant.
PARDEE, Circuit Judge. In August, 1905, the State Life Insurance Company of Indianapolis, Ind., issued and delivered to Eddie M. Jewell its policy of life insurance, covering the life of said Eddie M. Jewell in the amount of $5,000. Mrs. C. Ď. Frink, a sister of the in•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
sured, was designated as the beneficiary in said policy who should receive the said sum in case of the death of the insured. On June 2, 1906, the insured died; the policy at that time being in full force and effect and all premiums paid. The said insured was unmarried when the said policy was issued; but on June 2, 1906, when he died, he was married, and Jessie M. Jewell, appellant, his widow, survives him.
The appellees, Č. D. Frink and Mrs. C. D. Frink, contended there had been no change of beneficiary, and that they were entitled to the amount of the policy, and so notified the insurance company. Mrs. Jessie M. Jewell contended that the insured, before his death, changed the beneficiary from his sister, Mrs. C. D. Frink, to his wife, Mrs. Jessie M. Jewell, and, further, that if by the proceedings had the beneficiary was not actually changed on the books of the company, yet by what the said Eddie M. Jewell did and attempted to do, and the notification given by him to the company, the said beneficiary was changed in justice and equity, and that the amount of the policy should be paid to her. In pursuance of this demand, on the 7th day of September, 1906, the said Jessie M. Jewell filed in the chancery court of Geneva county, Ala., a bill of complaint against the insurance company and said Mrs. Frink for the purpose of enforcing her claim and right to the proceeds of said policy of insurance. Thereupon the insurance company, on the 2d day of November, 1907, filed its bill of interpleader against both Mrs. Frink and Mrs. Jewell in the Circuit Court of the United States for the Northern District of Florida. To this bill both the defendants named, Mrs. Frink and Mrs. Jessie M. Jewell, entered appearances.
Mrs. Frink and her husband on the 6th day of January, 1908, filed a deinurrer to this bill of interpleader. Afterwards, on the 4th day of February, 1908, the complainant on leave of the court filed an amendment to its original bill, on which the court ordered notice to be served upon counsel for the parties defendant and directed them to plead on or before the next rule day, February, 1908. On February 17, 1908, Mr. and Mrs. C. D. Frink filed an answer, asserting their title to the fund in controversy, and reciting facts tending to attack and controvert the right of Mrs. Jessie M. Jewell. Afterwards, on leave of the court, on the 17th day of March, 1909, complainant filed another and lengthy amendment to the original bill of complaint, therein setting out in considerable detail the several contentions of Mrs. Frink and Mrs. Jessie M. Jewell as to their rights to receive the amount of the policy issued on the life of Eddie M. Jewell,
Mrs. C. D. Frink followed this bill with an answer on the 22d day of March, 1909, objecting and protesting against the defendant Mrs. Jessie M. Jewell being permitted to file any answer herein for certain reasons given. Thereupon the judge caused to be entered an order to the effect that Mrs. Jessie M. Jewell should not be allowed to file an answer until she had given a bond for costs on or before the 1st day of May next following. On the 14th day of April, 1909, Mrs. Jessie M. Jewell filed an answer to the bill of complaint, therein, among other matters, charging that the said Eddie M. Jewell in his lifetime changed the beneficiary in the policy from Mrs. C. D. Frink to Jessie M. Jewell, which change was made in writing, signed and